WINTER 2004
Occupational Stress Update
In today’s increasingly busy workplace, incidences of Occupational
Stress are not uncommon. Employers must therefore take this issue
seriously if they are to ensure that they do not fall foul of their duty
of care to employees.
The Mental Health Association of Ireland commissioned a study in
2001 to review the stress levels of the general public. Almost 40%
of the 1,000 people interviewed admitted being stressed as a result
of having too much work, with over 50% of 25–34 year olds
complaining of having too much work.
An employer owes both statutory and common law duties of care
to his employees. An employer’s statutory duties regarding safety
at work are primarily governed by the Safety, Health and Welfare
at Work Act, 1989, together with the regulations made under that
Act. Section 6 (1) of the Act states that “…it shall be the duty,
of every employer to ensure, as far as is reasonably practicable,
the safety, health and welfare of employees”.
Employers also have a common law duty to take reasonable care to
ensure their employee’s health and safety at work, including safety
from work-related stress injuries. When an employer breaches this
duty of care he is liable in negligence. The notion of negligence
stems from a defendant's failure to fulfil an obligation which is recognised and generally accepted
as owing to a plaintiff. It is settled law that “…the duty of an employer towards a servant is to take
reasonable care for the servant's safety in all circumstances”. (Dalton v Frendo, unreported Supreme
Court 15 December 1977).
While employer liability imposes a duty of care on employers themselves, vicarious liability makes
an employer liable for the torts of fellow employees committed in the course of their employment.
The principle of vicarious liability is an important one for an employee seeking a remedy for stress.
Where the existence of his stress was within the knowledge of a fellow employee, whether a peer or
supervisor, the knowledge of a fellow employee is then imputed to the employer.
It is open to an employee who suffers personal injuries as a result of work-related stress to pursue
claims for damages through the civil courts. The courts have long since recognised an employer’s
liability for physical injury suffered by employees as a result of the negligence of either their
employers (employer liability) or the actions of their colleagues (vicarious liability). It is only
in recent years that the courts and legislature have begun to come to grips with the notion that
an employer can be liable for psychiatric injury caused as a result of stress at work.
One of the most notable decisions in this area is a decision of the English High Court in the case
of Walker v Northumberland County Council (1995 1 All ER). The Plaintiff, Mr. Walker, was
the manager of four teams of social services field workers in the area of Northumberland. As a result
of increasing volumes of work, Mr. Walker asked senior management to increase staff, or to provide
management guidance on work distribution and prioritisation but this was not forthcoming.
In November 1986 Mr. Walker suffered his first nervous breakdown. He returned to work in March
1987, having been given a commitment from his immediate supervisor that he would be assisted in
his duties by an Area Officer seconded to him for as long as was necessary. Mr. Walker’s superior also
undertook to visit Mr. Walker weekly and guaranteed him assistance from other Area Officers.
Occupational Stress Update
WINTER 2004
Following his return to work, Mr. Walker was not visited by his supervisor and the Area Officer
assigned to him had such a large work load of his own cases that he was only intermittently available
to assist Mr. Walker. This limited assistance was subsequently withdrawn. Further, Mr. Walker found
that during his absence a substantial volume of paperwork had built up and had to be dealt with
upon his return. He was also faced with an increasing number of pending cases. Mr. Walker suffered
a further mental breakdown later in 1987 and was again forced out of his employment on sick leave.
In February 1988 Mr. Walker was dismissed by Northumberland County Council on grounds of
permanent ill health. Mr. Walker claimed damages against the Northumberland County Council for
breach of it’s duty of care as his employer in failing to take reasonable steps to avoid exposing him
to health endangering workload. Mr. Walker’s evidence was that his immediate supervisors knew that
social work was particularly stressful and that such stress could give rise to mental illness. Mr. Walker
also argued that his work load was such as to impose increasing stress on him and that his employers
reasonably should have foreseen that unless they took steps to alleviate the impact of the workload,
that there was a real risk that he would suffer mental illness. In the English High Court, Colman J.
stated:
“There has been little judicial authority to the extent of which an employer owes to his employees a duty
not to cause them psychiatric damage by the volume or character of the work which the employees are
required to perform. It is clear law that an employer has a duty to provide his employees with a
reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably
foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving
physical injury to the employee as distinct from injury to his mental health, there is no logical reason
why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from
the co-extensive implied term in a contract of employment.”
Colman J. accepted the difficulty in relation to evidential issues of foreseeability and causation.
He confirmed that the standard of care required from an employer must be measured against the
yardstick of reasonable conduct.
Colman J.’s decision has been referred to by Irish Judges and there is no reason to believe that
it would not be followed. It was also upheld in the decision of Sutherland v Hatton in the U.K.
(Court of Appeal 5th February 2002, House of Lords 1st April 2004). The Hatton decision
concerned appeals by four employers against earlier decisions where their respective employees had
been successful in suing for injury arising from work-related stress. Apart from the nature of the
cases, the claims were otherwise unrelated having taken place in four different counties in the U.K.
In fact, the Plaintiffs were quite different. Mr. Bishop was a manual worker in a factory, Mrs. Hatton
and Mr. Barber were secondary school teachers and Mrs. Jones was an administrative assistant.
Hayle L.J. in the English Court of Appeal set out 16 practical propositions for the guidance of
the courts concerned with this type of claim in relation to the duty, foreseeability, breach of duty
causation and apportionment, and quantification of claims.
16 practical propositions:
1.
Duty – there are no special control mechanisms applying to claims for psychiatric
(or physical) injury or illness arising from the stress of doing work which an
employee is required to do. Therefore, the usual principles of employer's liability
will apply;
2.
Foreseeability – was this type of harm to a particular employee reasonably
foreseeable? This has two components:
(i) an injury to health; and
(ii) contributable to stress at work;
3.
Foreseeability will depend on what an employer knows (or ought reasonably
to know) about an individual employee;
4.
There are no occupations which should be regarded as intrinsically dangerous
to mental health;
5.
The nature and extent of work being done by an employee and signs from an
employee of impending harm to health will be relevant;
6.
An employer is usually entitled to take what he is told by an employee at face
value unless he has good reason to think to the contrary;
7.
To trigger a duty to take steps, the indication of impending harm to health arising from stress at
work must be plain enough for any reasonable employer to realise that he should do something
about it;
8.
An employer is only in breach of duty if he has failed to take steps which are reasonable in the
circumstances;
9.
The size and scope of an employer’s operation, it’s resources and the demands it faces will be
relevant in deciding what is reasonable in the circumstances;
10. An employer can only reasonably be expected to take steps which are likely to do some good;
11. An employer who offers a confidential advice service with referral to appropriate counselling
or treatment services is unlikely to be found in breach of his duty;
12. If the only reasonable and effective step would be to dismiss or demote an employee, an
employer will not be in breach of duty in allowing a willing employee to continue in a job;
13. It will always be necessary to identify the steps which an employer both could and should
have taken before finding him in breach of his duty of care;
14. A claimant must show that the breach of duty caused or materially contributed to the harm
suffered. It is not enough to show that occupational stress caused the harm;
15. Where the harm suffered has more than one cause, an employer should only be required to
pay for that proportion of the harm which is attributable to his wrong doing; and
16. The assessment of damages will take account of any pre-existing disorder or vulnerability.
Occupational Stress Update
WINTER 2004
The Court of Appeal overturned three out of four of the awards made by the English High Court.
One of the employees, Mr. Barber, whose award was overturned by the Court of Appeal appealed
Hayle L.J.’s decision to the English House of Lords. While Mr. Barber was successful in his appeal,
the House of Lords upheld the principles of law set down by Hayle L.J. in the Court of Appeal.
Mr. Barber’s case was decided on its own particular facts. It transpired that Mr. Barber had submitted
medical certificates to his employer which stated that he was stressed and depressed. In addition,
Mr. Barber told his employers that he was not coping very well and that his workload was becoming
detrimental to his health. In those circumstances, the House of Lords held that the response of
Mr. Barber’s employers to the information that he was finding it difficult to cope was inadequate
and at the very least his position should have been investigated.
Unfortunately, there are very few reported decisions in Ireland in this area in this jurisdiction,
though we would recommend that the practical propositions set out by Hayle L.J. are followed.
Dr. Joseph Hogan, a Consultant Radiologist at Ennis Hospital sued his employer, the Mid-Western
Health Board for negligence. His action was settled last November during the second day of the
hearing. Dr. Hogan was the sole Consultant Radiologist at Ennis Hospital and had no back-up
whatsoever. Therefore, although he had a contractual entitlement to thirty-one days leave in each
leave year, no locum or other consultant was ever provided by the Mid-Western Health Board.
In addition, he was on call to the hospital twenty-four hours a day, seven days a week, except for
rest days. Even on those rest days he had no cover and so he was unable to take them because of
the build-up of work. Counsel for Dr. Hogan told the Court that under the “…Fosterhill system
of measuring the workloads of a Consultant Radiologist, Dr. Hogan was doing the work of three
consultants”. Dr. Hogan suffered a breakdown in August 1996 but returned to work thereafter.
In 1997 he had accumulated some five hundred rest days but was refused payment for them.
Instead he was told that he would be given an allowance of two hundred and two days by being
allowed to retire a year earlier than he would have been due, in 2013 rather than 2014. Dr. Hogan
was unwell in November 1997, again in 1998 and 1999. His evidence was that in June 2001
“the wheels came off” and he had a complete breakdown. A classic Walker scenario and hardly
surprising that the matter settled for what was rumoured to be quite a large sum.
In summary, an employer will only be liable in damages for work-related stress where the employer
knew or ought to have known about the stress but failed to take any steps to remedy the causes
of the stress. The courts will look to whether an employee’s illness was reasonably foreseeable and
whether there were any steps which could and should have been taken to prevent that illness.
From a purely practical perspective we would suggest that every attempt is made both at the outset
of the recruitment process and for the duration of the employment relationship, to ensure that an
employee understands what is required of him/her in relation to a particular position going forward.
In addition, it is imperative that employers learn to deal with and manage stress actively. Employers
are not in a position to make a call as to whether an employee is stressed or not and therefore
employers should always appoint medical practitioners and/or specialist psychologists or psychiatrists
to meet with and report on employees complaining of work-related stress.
Employers should also actively tackle identified stressors in the workplace. By putting in place proper
policies, procedures and reporting structures and ensuring clear divisions of work, employers can take
some steps towards ensuring that employees work in a stress free environment.
If you have any queries or require further information, please contact:
Melanie Crowley Tel: (01) 614 5230 Email: mcrowley@mhc.ie
The contents of this publication are to assist access to information and do not constitute legal or other advice.
Readers should obtain their own legal and other advice as may be required. © Copyright 2004 Mason Hayes & Curran.
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